Judge: Loren G. Freestone, Case: 37-2023-00031436-CU-PT-CTL, Date: 2024-01-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - January 11, 2024

01/12/2024  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  Petitions - Other Motion Hearing (Civil) 37-2023-00031436-CU-PT-CTL DARNELL VS CONSUMERTRACK INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Petitioners Brian Darnell and Eric Braswell's motion to compel arbitration is DENIED AS MOOT.

Petitioners' motion for attorney fees is DENIED.

Preliminary Matters Both parties' briefs include screenshots of information for Consumertrack, Inc. from the California Secretary of State. Although neither party properly requested judicial notice (see Cal. Rules of Court, rule 3.1113(l)), the court takes judicial notice of the corporate information for both Consumertrack, Inc.

(2439474) and Consumertrack, Inc. (4665579). (See Evid. Code, §§ 452, subd. (h), 455, subd. (a); Jones v. Goodman (2020) 57 Cal.App.5th 521, 528, fn. 6.) The Petition to Compel A petition to compel arbitration cannot be granted unless 'a party to the agreement refuses to arbitrate.' (Code Civ. Proc., § 1281.2.) Such refusal 'is what requires and justifies the intervention of the court to order arbitration under the agreement.' (See Mansouri v. Superior Court (2010) 181 Cal.App.4th 633, 641.) Here, Consumertrack has agreed to arbitrate. As such, the petition to compel arbitration is denied as moot.

Attorney Fees If the party that drafted a consumer arbitration agreement 'materially breaches' by failing to timely pay fees and costs necessary to initiate arbitration, that party may be ordered to 'pay the reasonable expenses, including attorney's fees and costs,' incurred by the consumer as a result of the material breach. (Code Civ. Proc., § 1281.99, subd. (a).) There is a material breach if the fees and costs 'are not paid within 30 days after the due date.' (Code Civ. Proc., § 1281.97, subd. (a)(1).) '[U]nless the parties expressly agree to the contrary, the drafting party's receipt of the invoice triggers the 30-day clock.' (Espinoza v. Superior Court (2022) 83 Cal.App.5th 761, 774; see also Code Civ. Proc., § 1281.97, subd. (a)(2).) Calendar No.: Event ID:  TENTATIVE RULINGS

3003856  46 CASE NUMBER: CASE TITLE:  DARNELL VS CONSUMERTRACK INC [IMAGED]  37-2023-00031436-CU-PT-CTL Based on the evidence presented, the court finds that Consumertrack never received the AAA invoice.

As such, payment never became due, and therefore its failure to pay AAA was not a material breach.

The address where AAA mailed the June 12, 2023 letter/invoice, as well as its subsequent letters, was 1700 E. Walnut Avenue, 2nd Floor, El Segundo, CA 90245. This was the address provided by Petitioners in their demands. This, however, was not Consumertrack's address at the time. As of November 2020, Consumertrack's address was 925 Tahoe Boulevard, Suite #206, Incline Village, NV 89451.

Petitioners argue that the El Segundo address is listed as Consumertrack's address, and its registered agent's address, on the California Secretary of State's website. However, the Secretary of State website identifies two entities: Consumertrack, Inc. (2439474) and Consumertrack, Inc. (4665579). Although the El Segundo address is associated with Consumertrack, Inc. (2439474), that entity is identified as having been 'Merged Out' as of November 2020. Consumertrack, Inc. (4665579), on the other hand, is identified as 'Active' as of November 2020. The address associated with Consumertrack, Inc.

(4665579) is the Incline Village address and its registered agent is listed as CT Corporation. Petitioners do not explain why they sent their demand to, and provided AAA with, the address associated with the 'Merged Out' corporation and not the address or registered agent for the 'Active' corporation. Notably, unlike the demand and invoice, the instant petition was served on the 'Active' corporation's registered agent. (ROA #5.) Petitioners also argue that the El Segundo was identified in the 'Miscellaneous' section of the terms and conditions as the address where 'any questions or concerns' could be sent. However, the address is not listed as a location where legal documents can be sent. Moreover, the terms and conditions attached to the demand indicate that they were last updated in October 2020. Although Consumertrack should have updated them after it reorganized and changed its address, having admittedly reviewed the California Secretary of State's website, Petitioners should have realized that the address listed in the terms and conditions was outdated as of November 2020.

Finally, Petitioners note that the invoice was also mailed to 'info@ImportantScore.com.' The terms and conditions indicate that this is a general email address where a variety of requests, questions, and other matters may be sent. However, Petitioners have failed to establish that this was a proper electronic address for service of legal documents. Consumertrack also submits evidence that any emails sent to that address did not provide actual notice of the AAA proceedings.

Consumertrack did not receive the invoice until after AAA had administratively closed the arbitration and after Petitioners served its registered agent with the instant petition. At that point, Consumertrack repeatedly reached out to Petitioners and informed them that it was willing to arbitrate, but it did not receive a response. Under the circumstances, there was no material breach, and therefore the request for attorney fees is denied.

Calendar No.: Event ID:  TENTATIVE RULINGS

3003856  46